in Re Double Diamond, Inc., Double Diamond Management Corp., Double Diamond Utilities Co., R. Mike Ward, Cliffs Golf, Inc., Cliffs Dining Corp., Cliffs Hotel Corp., Cliffs Marina Inc., Cliffs Club Corp., Randy Grace and Double Diamond-Delaware, Inc.

Opinion filed December 13, 2018

In The

Eleventh Court of Appeals __________

No. 11-18-00318-CV __________

IN RE DOUBLE DIAMOND, INC., DOUBLE DIAMOND MANAGEMENT CORP., DOUBLE DIAMOND UTILITIES CO., R. MIKE WARD, CLIFFS GOLF, INC., CLIFFS DINING CORP., CLIFFS HOTEL CORP., CLIFFS MARINA INC., CLIFFS CLUB CORP., RANDY GRACE, AND DOUBLE DIAMOND- DELAWARE, INC.

Original Mandamus Proceeding

OPINION This mandamus proceeding arises from a suit filed by Real Parties in Interest, Dan Dipprey et al. The real parties in interest are members of a property owners association known as The Cliffs Property Owners’ Association, Inc. They filed suit against Relators—Double Diamond, Inc., Double Diamond Management Corporation, Double Diamond Utilities Co., R. Mike Ward, Cliffs Golf, Inc., Cliffs Dining Corp., Cliffs Hotel Corp., Cliffs Marina, Inc., Cliffs Club Corp., Randy Grace, and Double Diamond-Delaware, Inc.—concerning the governance of the

property owners association. We note at the outset that the property owners association is not a party to either the underlying suit or this original proceeding. Relators have filed a petition for writ of mandamus seeking to vacate various interlocutory orders by the trial court concerning the annual election of the board of directors of the property owners association, a “special meeting” of the members of the property owners association, the tabulation of members’ votes, and the removal of directors and election of new directors. Relators assert that these orders by the trial court violate the governing documents of the property owners association. We deny Relators’ request for mandamus relief. Mandamus is an “extraordinary” remedy that is “available only in limited circumstances.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). A writ of mandamus will issue only if the trial court clearly abused its discretion and the relator has no adequate remedy on appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). With respect to the first requirement, a trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam). In addition, because a trial court has no discretion in determining what the law is or in applying it to the facts, a trial court abuses its discretion if it fails to correctly analyze or apply the law. See Prudential, 148 S.W.3d at 135; see also In re J.B. Hunt Transp., Inc., 492 S.W.3d 287, 294 (Tex. 2016) (orig. proceeding). With respect to the second requirement, the cost and delay of pursuing an appeal will not, in themselves, render appeal an inadequate alternative to mandamus review. In re Entergy Corp., 142 S.W.3d 316, 321 (Tex. 2004) (orig. proceeding). We do not reach Relators’ contention that the trial court has clearly abused its discretion

because we conclude that Relators have not established that they do not have an adequate remedy by appeal.1 The trial court’s rulings that are the subject of this original proceeding are interlocutory rulings by the trial court made during the pendency of the underlying suit. The adequacy of appeal as a remedy for an alleged clear abuse of discretion in an interlocutory ruling involves a balance of jurisprudential considerations. In re Prudential, 148 S.W.3d at 136. An appellate remedy is “adequate” when any benefits to mandamus review are outweighed by the detriments. Id. When the benefits outweigh the detriments, appellate courts must consider whether the appellate remedy is adequate. Id. “As a general rule, mandamus does not lie to correct incidental trial court rulings when there is a remedy by appeal.” In re Entergy, 142 S.W.3d at 320 (citing Bell Helicopter Textron, Inc. v. Walker, 787 S.W.2d 954, 955 (Tex. 1990)). As noted by the Texas Supreme Court in In re Prudential: Mandamus review of incidental, interlocutory rulings by the trial courts unduly interferes with trial court proceedings, distracts appellate court attention to issues that are unimportant both to the ultimate disposition of the case at hand and to the uniform development of the law, and adds unproductively to the expense and delay of civil litigation.

148 S.W.3d at 136. “The reluctance to issue extraordinary writs to correct incidental trial court rulings can be traced to a desire to prevent parties from attempting to use the writ as a substitute for an authorized appeal.” In re Entergy, 142 S.W.3d at 320. Appellate courts will not exercise mandamus jurisdiction over interlocutory trial court rulings absent “special, unique circumstances” that mandate intervention. Id. at 321.

1 We express no opinion concerning whether the trial court has correctly interpreted the governing documents of the property owners association. As noted in our opinion, this is an issue that we have not reached.

An appeal is inadequate when parties are in danger of permanently losing substantial rights. In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 211 (Tex. 2004) (orig. proceeding). “Such a danger arises when the appellate court would not be able to cure the error, when the party’s ability to present a viable claim or defense is vitiated, or when the error cannot be made part of the appellate record.” Id. As observed by the Austin Court of Appeals, “the most frequent use of mandamus relief by the supreme court involves cases in which the very act of proceeding to trial— regardless of the outcome—would defeat the substantive right involved.” In re Empower Texans, Inc., No. 03-18-00220-CV, 2018 WL 1802515, at *3 (Tex. App.—Austin Apr. 17, 2018, orig. proceeding) (mem. op.) (listing the circumstances wherein the supreme court has recently granted mandamus relief for interlocutory trial court rulings). Other than asserting that they have “urgent issues,” Relators have not asserted they do not have an adequate remedy by appeal. We conclude that Relators have an adequate remedy by appeal. The proper tabulation of votes and the composition of the board of directors are matters that can be litigated at the trial on the merits, which has not yet occurred. Furthermore, the trial court’s rulings would not seem to impair Relators’ presentation of evidence at trial or their ability to litigate the matter on appeal. It would appear that all votes/proxies cast can be preserved for the trial court or jury to consider at the trial on the merits. The trial court’s task of interpreting the governing documents for the property owners association is one typically undertaken by a trial court in the summary judgment context. Issues resolved by summary judgment are typically not subject to mandamus review. See In re Gibson, 533 S.W.3d 916, 921 (Tex. App.— Texarkana 2017, orig. proceeding). Any error arising from incidental trial court rulings concerning the legal interpretation of documents is a matter that typically can be corrected on appeal. To hold otherwise would be permitting Relators to pursue

an impermissible interlocutory appeal of the trial court’s interlocutory orders. See In re Entergy, 142 S.W.3d at 320; see also In re Brar, 463 S.W.3d 921, 923 (Tex. App.—Dallas 2015, orig. proceeding) (“Granting the relief relator seeks would result in nothing more than the piecemeal resolution of the suit.”). Accordingly, we deny Relators’ requested mandamus relief solely on the basis that this is not the sort of exceptional case that warrants the extraordinary remedy of mandamus.

JOHN M. BAILEY CHIEF JUSTICE

December 13, 2018 Panel consists of: Bailey, C.J., Willson, J., and Wright, S.C.J.2

Willson, J., not participating.

2 Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.